Bombay High Court

Ashok Kaduba Patil vs The State Of Maharashtra on 3 August, 2017

Bench: Sangitrao S. Patil

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 97 OF 2002


Ashok s/o Kaduba Patil,
Age : 24 years, occu. 
R/o Pahur, Tq. Jamner,                                    APPELLANT
District Jalgaon                                   (Orig. Accused No.1)

       VERSUS

The State of Maharashtra,
through the P.S.O.,
Pahur Police Station
Tq. Jamner, Dist. Jalgaon                                      RESPONDENT 

                         ----
Mr. S.H. Jagiasi, Advocate holding for Mr. M.V.
Deshpande, Advocate for the Appellant
Mr. P.N. Kutti, A.P.P. for the respondent/State
                         ----

                                      CORAM : SANGITRAO S. PATIL, J.

                 JUDGMENT RESERVED ON  :              28th JULY, 2017
                 JUDGMENT PRONOUCNED ON :             3rd AUGUST, 2017


JUDGMENT :

Heard the learned counsel for the appellant

and the learned A.P.P.

2. The appellant (original accused No.1), being

aggrieved by the conviction and sentence recorded

against him for the offence under Section 306 of the

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Indian Penal Code ("IPC", for short) by the learned 1 st

Adhoc Additional Sessions Judge, Jalgaon on 21st

February, 2002 in Sessions Case No. 177 of 1999, has

preferred this appeal.

3. The appellant and the deceased Urmila got

married on 20th April, 1999. Original accused nos.2,3

and 4 are the father, mother and uncle, respectively of

the appellant. The appellant and accused Nos.2 to 4 were

prosecuted for the offences punishable under Sections

498-A and 306 read with Section 34 of the IPC. Accused

No.4 was further charged with the offence punishable

under Section 203 of the IPC.

4. It is the case of the prosecution that the

appellant and accused Nos.2 to 4, in furtherance of

their common intention, subjected the deceased Urmila to

cruelty with a view to compel her to fulfill their

unlawful demand of Rs.25,000/- and further abetted the

deceased Urmila to commit suicide by consuming poisonous

substance on 4th August, 1999 when she was residing at

her matrimonial house. It was alleged that accused No.4

gave false information to the father and other relatives

of the deceased Urmila that she suffered an attack and

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therefore, was admitted in the hospital, though, in

fact, she had died of poisoning.

5. The prosecution examined 11 witnesses to

establish guilt of the appellant and accused Nos. 2 to 4

for the above mentioned offences. After scrutinizing

the evidence produced by the prosecution, the learned

Trial Judge came to hold that the prosecution failed to

establish guilt of accused Nos. 2 to 4 for all the

offences with which they were charged and therefore,

acquitted them of all those offences. The learned Trial

Judge further held that the prosecution failed to

establish that the appellant subjected the deceased

Urmila to cruelty and acquitted him of the offence

punishable under Section 498-A of the IPC. However, the

learned Trial Judge held the appellant guilty of the

offence punishable under Section 306 of the IPC and

sentenced him to suffer rigorous imprisonment for five

years and to pay a fine of Rs.500/-, in default to

suffer rigorous imprisonment for one month. The

appellant deposited the fine amount in the Trial Court.

6. The acquittal of accused Nos. 2 to 4 of all the

offences and that of the appellant of the offence

4 criapl97-2002

punishable under Section 498-A of the IPC, has not been

challenged by the prosecution. Thus, the judgment and

order of the Trial Court in respect of that acquittal

has attained finality. The appellant has challenged his

conviction and sentence for the offence under Section

306 of the IPC in this appeal.

7. The prosecution mainly relied on the evidence

of Vithal (PW1) (the informant), Nirmalabai (PW6) and

Prakash (PW7), who are the father, mother and maternal

uncle, respectively of the deceased Urmila to connect

the appellant with the offence of abetting the deceased

Urmila to commit suicide. The prosecution has further

examined one Ramrao (PW8), who happened to be one of the

relatives of the deceased Urmila. He was residing at

Pahur itself where there was her matrimonial home.

8. There is no dispute that the appellant and the

deceased Urmila got married on 20th April, 1999. She was

residing at her matrimonial house. She died of poisoning

on 8th August, 1999 when she was at her matrimonial

home. According to the appellant, the deceased Urmila

was a fair looking person. She wanted to marry to the

son of her aunt. Therefore, she was not happy in

5 criapl97-2002

cohabiting with the appellant and ultimately, she

committed suicide. It is denied by the appellant that

either his family members or himself ever demanded any

cash amount from the father of the deceased Urmila or

subjected her to cruelty.

9. Vithal (PW1) deposes that the deceased Urmila

was treated well at her matrimonial house for about a

month or so. Then after about eight days thereof, she

visited his house and at that time, informed that she

was being illtreated by the appellant and her mother-in-

law and that they were asking her to bring Rs.25,000/-

from her maternal home. Nirmalabai (PW6), the mother of

the deceased Urmila, also states that for the initial

period of 1 and 1¼ month, the deceased Urmila was

treated well at her matrimonial house. Then she came to

her maternal home and at that time, she informed that

all the accused persons were illtreating her. The

appellant was asking her to bring Rs.25,000/- from her

father and her father-in-law used to taunt and illtreat

her. The evidence of these witnesses, besides being

scanty, vague and general, is not consistent to each

other. Vithal (PW1) states that the deceased Urmila had

6 criapl97-2002

informed him that all the accused persons had asked her

to bring Rs.25,000/- from him, whereas Nirmalabai (PW6)

states that the appellant only had asked her to bring

Rs.25,000/-. Vithal (PW1) states that the deceased

Urmila had informed him that she was being illtreated by

the appellant and her mother-in-law (original accused

No.3). However, Nirmlabai (PW6) states that the deceased

Urmila had informed her that her father-in-law (original

accused No.2) used to taunt and illtreat her. She does

not state that the deceased Urmila had informed her that

the appellant, at any point of time, in any particular

manner, illtreated her. In view of this inconsistent

scanty, vague and general evidence, the learned Trial

Judge rightly held that the prosecution failed to

establish that the deceased Urmila was subjected to

cruelty by the appellant and the other accused persons.

10. It has come in the evidence of Vithal (PW1)

that the appellant and the other accused persons own 80

to 90 acres of land. They possess a big building.

Their financial condition is quite sound. He states

that his own financial condition is weak. Vitthal (PW1)

and Nirmalabai (PW2) specifically state that there is no

7 criapl97-2002

custom in their community of giving and taking dowry. If

this evidence is considered, the case of the prosecution

that the appellant or his parents were asking the

deceased Urmila to bring Rs.25,000/- from Vithal (PW1)

does not stand to reason. The case of the prosecution

that the deceased Urmila was being harassed with a view

to compel her to bring Rs.25,000/- from her maternal

home, in the circumstances of the case, cannot be

believed.

11. It has come in the evidence of Vithal (PW1),

Nirmalabai (PW6) and Prakash (PW7) that once the

deceased Urmila was driven out of her matrimonial house

after removing the ornaments from her person and after

beating her. They state that at that time, she had gone

to the house of Prakash (PW7), her maternal uncle, who

is residing at village Pimpalgaon, at the distance of

about 5 kms. from Pahur. Nirmalabai (PW6) states that

on receiving the message from Prakash (PW7) about

arrival of the deceased Urmila to his house, she had

gone to the house of Prakash (Pw7). It has come in the

evidence of Nirmalabai (PW6) and Prakash (PW7) that they

reached the deceased Urmila to her matrimonial house at

8 criapl97-2002

Pahur and convinced the appellant and his parents that

the father of the deceased Urmila was not in a position

to pay money and came back. Both these witnesses could

not give the details of the above mentioned incident.

Moreover, they do not state that they protested before

the appellant and his parents for illtreating the

deceased Urmila. Had the deceased Urmila been illtreated

as claimed by these witnesses, they certainly would have

questioned the appellant and his parents for extending

illtreatment to her. However, nothing of that sort is

stated to have been done by them.

12. Ramrao (PW8) is one of the relatives of the

deceased Urmila. He is residing at Pahur. He states that

before about 8 days of the incident, the deceased Urmila

was going along the road from near his house. He asked

her as to where she was going, whereon she replied that

she was going to the place of her maternal uncle. He

states that at that time she was under tension. It has

come in his cross-examination that his house is not

situate on the way from the matrimonial home of the

deceased Urmila to the bus stand. Therefore, there was

no question of seeing him Urmila along the road from

9 criapl97-2002

near his house. Moreover, the facts that Urmila was

going along the road, that he asked her as to where she

was going and that she replied that she was going to her

maternal uncle, have not been stated by him in his

statement before police. These material omissions have

been proved through API Bahure (PW11), who had recorded

his statement. The evidence of Ramrao (PW8) is not at

all natural, probable and acceptable. He is a got up

witness. His evidence is of no use to the prosecution to

prove guilt of the appellant.

13. As stated above, the demand of Rs.25,000/- from

the side of the appellant and his parents does not

appear to be natural and probable considering their

sound financial condition and weak financial condition

of Vithal (PW1). Moreover, no action was taken by these

witnesses against the appellant or his parents in

respect of that incident of illtreatment. The evidence

of these witnesses in respect of that incident also is

very vague and general. It does not inspire the

confidence.

14. Once it is held that the deceased Urmila was

not subjected to cruelty, the presumption laid down in

10 criapl97-2002

Section 113-A of the Indian Evidence Act would not come

to the aid of the prosecution because for application of

that presumption, it has to be established that the

husband or the relatives of the husband had subjected

the woman to cruelty.

15. As seen from the evidence of Dr. Gajre (PW9),

who conducted post-mortem on the body of the deceased

Urmila, she died of asphyxia due to poisoning. Her

viscera was preserved and sent to the Chemical Analyst

for analysis and report. The Chemical Analyst reported

that the viscera formed organo chlogo insecticide

indosalphan (Thiodan). It is, thus, clear that the

deceased Urmila consumed this poisonous substance and

died as a result thereof. The post-mortem report (Exh-

40) shows that there was absolutely no external injury

on the body of the deceased Urmila. This fact also would

indicate that there was no illtreatment to the deceased

Urmila prior to her consuming poisonous substance. It

is, thus, clear that the deceased Urmila at her volition

consumed poisonous substance.

16. As per Section 306 of the IPC, if any person

commits suicide, whoever abets the commission of such

11 criapl97-2002

suicide, is liable to be punished as mentioned in that

Section.

17. The `abetment', as explained in Section 107 of

the IPC, is as under :-

107. Abetment of a thing. - A person abets the doing of a thing, who-

First. - Instigates any person to do that thing; or

Secondly. - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1. - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2. - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.

18. The learned counsel for the appellant submits

that the appellant has been acquitted by the Trial Court

12 criapl97-2002

of the offence punishable under Section 498-A of the IPC

with a specific finding that the appellant did not

subject her to cruelty. He then submits that Vithal

(PW1) and Nirmalabai (PW6) admit that in their

community, there is no custom of giving and taking dowry

in marriage. He then submits that the evidence on

record shows that the financial condition of the

appellant was very sound, whereas that of Vithal (PW1)

was poor. Therefore, there was no question of demanding

a sum of Rs.25,000/- by the appellant. He then submits

that the evidence on record is not natural,

probable and believable in respect of the alleged demand

of Rs.25,000/- by the appellant. There were no external

injuries on the body of the deceased Urmila as seen from

the evidence of Dr. Gajre (PW9). He submits that there

is absolutely no evidence to show that the appellant

intentionally aided or instigated the deceased Urmila to

commit suicide. On the contrary, he has come with a

plausible explanation that the deceased Urmila was

interested in getting married with the son of her aunt

and that she was not interested in cohabiting with him

and therefore, there is possibility of her committing

suicide. The learned counsel submits that in the

13 criapl97-2002

absence of any evidence to indicate that the appellant

instigated or aided the deceased Urmila to commit

suicide, he could not and should not have been convicted

for the offence punishable under Section 306 of the IPC.

19. On the other hand, the learned A.P.P. submits

that the defence of the appellant is not at all

probable. He submits that had the deceased Urmila been

not inclined to cohabit with the appellant, she would

not have resided at her matrimonial house 1 and 1¼

month after the marriage. He submits that the appellant

has not assigned any plausible reason being the suicidal

death of Urmila. He, therefore, supports the conviction

and sentence passed by the learned Trial Judge against

the appellant.

20. As stated above, once the appellant is held to

be not guilty of the offence of subjecting the deceased

Urmila to cruelty, as contemplated under Section 498-A

of the IPC, Section 113-A of the Indian Evidence Act

would not assist the prosecution in raising the

presumption as to abetment of suicide to the deceased

Urmila by the appellant. There is no positive and

dependable evidence on record to show that the deceased

14 criapl97-2002

Urmila was harassed by the appellant either for coercing

her to bring Rs.25,000/- from her maternal home or for

any other reason. If the appellant had harassed the

deceased Urmila on that count, she would not have

cohabited with him for 1 and 1¼ month after the

marriage. It seems that it is only after the death of

Urmila, the theory of demand of Rs.25,000/- and

harassment to the deceased Urmila at the hands of the

appellant has been developed. The deceased Urmila died

on 4th August, 1999. However, the FIR (Exh-26) has been

lodged on 6th August, 1999 at 4.45 p.m. The deceased

Urmila was cremated at Pahur itself. Vithal (PW1) states

that Police Station is in front of the house of the

appellant. If that be so, there was no reason for

Vithal (PW1) to lodge the report in that Police Station

after two days of the death of Urmila. The delay in

lodging FIR has not at all been explained. This

unexplained delay indicates that the FIR has been lodged

by way of an afterthought after due deliberations and

discussions. This delay in lodging the FIR itself

creates a strong doubt about the case of the

prosecution.

15 criapl97-2002

21. There is absolutely no direct or circumstantial

evidence to indicate that the appellant abetted the

deceased Urmila to commit suicide. The defence of the

appellant that the deceased Urmila was not interested in

cohabiting with him, in the circumstances of the case,

appears to be probable.

22. The learned counsel relied on the judgments in

the following cases:-

(i) Kamlesh Satyaprakash Agarwal Vs. State of Maharashtra 2015 (9) LJSOFT 288

(ii) Dattatraya Havanna Vanjare & another Vs. State of Maharashtra 2015 (11) LJSOFT 84

(iii) Vikas s/o Jayram Date Vs. State of Maharashtra 2016 (10) LJSOFT 26

(iv) Balasaheb Ganpati Jadhav & others Vs. State of Maharashtra 2016 (11) LJSOFT 102

(v) Ramesh s/o Shamrao Shinde Vs. State of Maharashtra 2016 (4) LJSOFT 69

(vi) Bibhishan s/o Eknath Shinde Vs. State of Maharashtra 2017 (3) LJSOFT 162

(vii) Namdeo s/o Bhauraoji Nagpure Vs. State of Maharashtra 2016 (3) LJSOFT 123

16 criapl97-2002

(viii) Sambhaji Chandrabhan Nalawade Vs. State of Maharashtra 2015 (12) LJSOFT 101

23. In all the above mentioned cases, the accused

were convicted for the offence punishable under Section

498-A of the IPC also, besides the offence punishable

under Section 306 of the IPC and in some cases, for the

offence punishable under Section 304-B of the IPC. Even

then, after considering the facts and circumstances of

those cases, the accused were acquitted of the said

offences. The said cases have been decided mainly on

the facts and circumstances existing therein. In view

of the distinguishing facts of this case, the said

decisions would not be of much help to the appellant.

However, in the case of Balasaheb Ganpati Jadhav and

others (supra), there is reference of paragraph No.13 of

the judgment in the case of Amalendu Pal alias Jhantu

Vs. State of West Bengal (2010) 1 SCC 707, wherein the

Hon'ble the Apex Court observed as under:-

"(13) In order to bring a case within the purview of Section 306 of IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have

17 criapl97-2002

abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.

24. The prosecution has failed to establish beyond

reasonable doubt that the appellant abetted the deceased

Urmila to commit suicide. The learned Trial Judge

wrongly appreciated the evidence and wrongly held the

appellant guilty of the said offence though he acquitted

the other accused of that offence on the basis of the

same evidence. Moreover, the learned Trial Judge

acquitted the appellant of the offence punishable under

Section 498-A of the IPC. When the appellant is held to

be not guilty of subjecting the deceased Urmila to

cruelty, in the absence of any strong evidence to

establish that the appellant did any overt act on the